August 8th, 2008, was a significant moment in the history of homeschool freedom. Celebrating its anniversary reminds us that God’s hand is mighty and He is actively working to protect us. The court reversing its decision was truly a miracle resulting in a great day of deliverance. Our God is truly for us.
Please read the message below from HSLDA.
Dear HSLDA Members and Friends:
On August 8, 2008, a California appellate court declared homeschooling legal in the case of In Re Jonathan L.
The court declared for the first time in California history that homeschooling was part of the private school exemption from public school attendance. (Homeschooling was not, and is still not, specifically mentioned in California law.)
AN EDUCATIONAL BACKGROUND
Despite the legal uncertainty, before the above decision, homeschooling grew as a grassroots movement embraced by thousands of families, through the legal representation of HSLDA, the advocacy of Family Protection Ministries before the legislature, and the grace of God.
There was and still is another way to homeschool – the tutorial option – but it requires the teacher to be licensed by the state of California. Most parents who homeschool are not certified teachers.
So, for the vast majority of homeschoolers, the only other option for satisfying compulsory school attendance laws was and is the private school option.
The story of the In Re Jonathan L victory is truly miraculous.
AGAINST ALL ODDS
The family involved were not members of HSLDA, nor did we know about the case until the initial decision was announced in the media on February 28, 2008. We were shocked and very concerned to learn that the appellate court sitting in Los Angeles had ruled that homeschooling was illegal except under the tutorial method.
We were then contacted by the attorney the family hired in an attempt to overturn the decision. This attorney had worked with us before and asked us to participate in the case.
We prepared a motion to have the court reconsider its opinion based upon some facts and law that were not presented on behalf of the family at their trial or upon appeal.
However, the odds of getting a court to vacate their previous decision and start all over is slim to none—and slim was riding out of town. However, the miracle occurred.
On March 25, the court vacated its bad decision and set both a date for oral argument and a date to have all the legal briefs submitted, both supporting and opposing.
The court recognized the importance of the case, as it would determine the legal fate of homeschooling in California; so, they invited any organization that had any interest in the matter to file a brief. They wanted to hear from as many sides of the issue as possible.
As a result, homeschool organizations across the state got busy and filed briefs, asserting the legality of homeschooling. Family Protection Ministries and CHEA of California were among those that filed briefs supporting homeschooling—especially from the perspective of religious freedom. Over 15 briefs were filed supporting homeschooling as an option under the private school exemption. Only two briefs were filed against.
UNEXPECTED ALLIES
Some of the briefs supporting homeschooling came from unexpected sources: The governor’s office on behalf of Arnold Schwarzenegger; the attorney general’s office by Jerry Brown; and the California Department of Education. Even the Los Angeles Unified School District’s brief was helpful, as it didn’t argue against private homeschooling.
After taking 90 days to deliberate after the oral arguments had been made, on August 8, the court issued its definitive ruling on the legality of homeschooling.
The court concluded that homeschooling is provided for under the private school statute. In that regard, the court said that the term “private full-time day school,” in Section 48222 of the California Education Code, was vague in that it could refer to traditional private schools or homeschools. Since the language is contained in a statute, the judges needed to look to the legislature and previous cases to try glean the intent behind the language.
There were two cases that had previously ruled that homeschooling was not legal via the private school exemption—People v. Turner and In Re Shinn. Since the California Legislature had never passed legislation regarding homeschooling after these decisions, a presumption existed that the legislature had acquiesced to the two decisions—not good.
Fortunately, the court did not stop there. They looked at other ways the legislature had addressed homeschooling, and they determined that lawmakers had acted as though homeschooling were permitted in California. They recognized the Department of Education was aware that homeschoolers were filing private school affidavits and even accommodated them by providing for different treatment of those filing with fewer than six students—presumed to be homeschoolers.
SILVER BULLET
Additionally, ten years before In Re Jonathan L, the legislature specifically exempted “a parent or legal guardian working exclusively with his or her children” from having to get fingerprints, which was required of all private school personnel. Family Protection Ministries provided this language and convinced the author of the legislation to exempt homeschoolers.
One other significant recognition by the legislature back in the day related to hazardous emissions within 1,000 feet of a school. The language in the law specifically exempts from the definition of a school “any private school in which education is primarily conducted in private homes.”
The court found it extremely significant that both the superintendent of public instruction and Department of Education agreed that it was legal for parents to qualify as private schools and teach their children in their homes. The fact that both the governor and attorney general agreed was the icing on the cake.
The court determined that the legislature, by its actions and inactions, tacitly had adopted the right of parents to homeschool as private schools in California. This miraculous decision settled the issue for all time, unless the legislature acts, confirmed that homeschooling is a legal form of private schooling in California.
Because private schools are relatively lightly regulated in California, it is one of the best states from a regulation perspective to homeschool. However, because homeschools are considered private schools, any legislation addressing private schools will impact homeschoolers. This requires extreme diligence on our part, and the part of Family Protection Ministries, in monitoring and responding to the California Legislature, if and when lawmakers introduce private school legislation.
HSLDA is committed to preserving and advancing the freedom homeschoolers have today. You play a major role in that effort through your membership, donations, and support when Sacramento needs to hear your voice.
Thank you for your partnership as we labor together to protect this God-given liberty to direct our children’s upbringing and education.
